1. The plaintiff claims a share in the suit property, because he and the first defendant were the reversioners of one Venkatasubbayya, whose property this was at the time when his widow Raghavamma surrendered the property to them. In appeal, this claim is resisted on the ground that the plaintiff and the first defendant, by reason of subsequent legislation, were not the reversioners because the widow was not in a position to surrender was not valid, estate, as a portion of it had been alienated. The lower appellate Court had against the appellants.
2. There is nothing in the first point. If the surrender was valid at the time when it was made, then it cannot become invalid because subsequent to the surrender, legislation made some other person the nearest reversioner
3. It would seems, although one cannot beuite sure what the real facts were, that the widow was that the widow was under the impression that the property said by the appellants to have been alienated did not belong to her, because of a will executed by her husband under which his mother became entitled to the property. She obtained a decree against her mother-in-law for some money due to her, and in execution proceeded against the property in question, believing it to belong to her mother-in-law, ine property was sold in execution of the decree and purchased by a third party.
3. The learned advocate for the appellant argues that a surrender cannot be made unless the person surrendering is in a position to surrender the whole of her husband's estate. He seeks authority for that contention in a short judgment in Vijayaraghava-chan v. Ramanujachari : AIR1929Mad37 which followed Sakharam Bala v. Thama I.L.R. (1927)Bom. 1019. The learned Judges quoted the following passage from a decision of the Privy Council in Rangaswami Goundanv. Nachiappa Goundan (1918) 36 M.LJ.493 : L.R. 46 IndAp 72 : I.L.R. 42 Mad. 523 :
It is effacement of the widow, an effacement which in other circumstances is effected by actual death or by avil death, which opens the estate of the deceased husband to his next heirs at that date. Now there cannot be a widow who is partly effaced and partly not so.
4. Their Lordships were considering an entirely different question from what we are considering here; but the learned Judges in Vijayaraghavachari v. Ramanujachari1 thought that this passage applied to the case that was under their consideration and said :
To apply this principle it is clear that when the widow purported to surrender her estate she did not and could not surrender the whole of her husband's estate so as to efface herself entirely. The previous alienations were her own act and she could not get rid of them. To that extent she was unable to surrender the whole of the estate and therefore the, surrender which she purported to make is invalid.
With due respect, it is difficult to see why the impossibility of surrendering the whole of her husband's estate prevented her from effacing herself entirely. If in good faith she made it clear that from a certain date henceforth she laid no claim to her husband's estate, it would seem that she effaced herself and became civilly dead and that the then reversioners were entitled to possession. Both in this case and in Sakharam Bala v. Thama I.L.R.(1927) Bom. 1019 which the learned Judges followed, the Courts were dealing with a Voluntary alienation by a widow. If the practicability of surrendering the whole estate is the test, then it would be difficult to draw any line between a voluntary alienation and an involuntary alienation. It is, however, doubtful whether the Judges in Vijqyaraghavachari v. Ramanujachari : AIR1929Mad37 would have held a surrender invalid if the alienation had been involuntary; for they used language suggesting that the fact that she herself had put the'property beyond the reach of the reversioners was a reason for their decision. The views of other High Courts differ from those expressed in the above decisions; and in Krishnavenamma v. Hanumantha Rao (1933) M.W.N. 1010, the learned Judges held that provided that a widow surrenders all that she is in a position to surrender, the surrender is valid. They said:
As to the argument that some property was left out of the surrender deed, Ex. I, it is equally unfounded... No doubt the surrender must be of the entire property. When it is said that the surrender must be of the entire property it means that the entire property then in the possession and enjoyment or control of the family... It cannot be the case in respect of properties that have been alienated away and are in possession of strangers that a widow surrendering her rights is required to mention all possible causes of action about them at the risk of finding her act invalid.
When the act of surrender has been in good faith, I am not prepared to extend the principle of Vijqyaraghavachari v. RamanujacharP to cases where the alienation was of an involuntary nature. In the present case, the property passed out of the family by mistake. The widow had every reason to believe that the will made by her husband was a valid will and that therefore the property against which she proceeded belonged to her mother-in-law and not to herself. When the reversioners subsequently brought a suit for a declaration that the will was invalid, the learned Judge found that at the time when the husband executed the will he was under 21 years of age and that he was therefore a minor, in view of the circumstances that a guardian had been appointed for him under the Guardians and Wards Act. In these circumstances, I am of opinion that the lower appellate Court was right. The second appeal is dismissed with costs.